ACTA: An international threat to freedom and liberty

In the words of the Prime Minister David Cameron, “getting online can help people save money, find a job, access services in a way that works for them, and make connections with each other and with their community.”1 As we have seen, the Digital Economy Act threatens these activities, possibly disconnecting families. On a global level, governments have been working on a major new agreement (ACTA) to regulate "counterfeit goods", such as fake handbags and drugs or commercial-scale illegally copied DVDs, which has been extended to cover the Internet and much else.

What is ACTA?

ACTA is the Anti-Counterfeiting Trade Agreement, which is currently being negotiated, largely in secret, between the United States, the EU and 9 other countries.2 This draft agreement seeks to regulate a wide range of copyright, patents and trademark issues, including, most controversially, providing for additional regulation of the Internet. There have been a number of leaks (here, here, here and here) and the European Commission published an official draft text on 22 April.

ACTA is a covert attempt, at the global level, to further reduce the public interest element in copyright, patents and trademarks, in the balance between the rights of creators, users, and the public at large, without proper debate and scrutiny in each nation state. The current form of ACTA is a threat to future innovation and freedom of citizens. ACTA is primarily driven by the US and the EU. Developing countries such as India and Brazil have been shut out of the process from the start.

This agreement has been developed primarily by the EU and USA and has little substantive democratic oversight. The supporters of ACTA are the governments of key developed countries and bodies such as the RIAA (Recording Industry Association of America). It is further outrageous that ACTA is not being negotiated as part of the WIPO or the WTO, where similar treaties were negotiated. One or two developing nations close to US trade policy, such as Mexico and Saudi Arabia, are also part of the negotiations.

How does ACTA fit in with international trade?

ACTA seeks to create an agreement between nations with a strong interest in high protection for intellectual property. They will then seek new partners to agree to these strong protections, who will be unable to influence the Treaty. The USA in particular has had a strategy of creating very strong protection for its goods through 'bilateral agreements' whereby they open up their lucrative markets to developing nations, in return for signing specific agreements. These tactics are likely to be used to 'encourage' developing nations to sign up to ACTA.

This is why the lack of involvement from a wide range of nations is so concerning. From the outside, it seems like a deliberate attempt to create a strong enforcement regime that is ill-suited to developing nations, largely in order to export the model through future trade negotiations.

International agreements on Intellectual Property have been increasingly made through the United Nations, and WIPO (Word Intellectual Property Office), resulting in treaties such as TRIPs, which have sought to balance rights of users as well as owners. These treaties often also recognise that strong IP protections are not always appropriate for small nations, whose law enforcement priorities may be, for instance, in tackling corruption or trade in drugs or armaments, rather than strictly enforcing the trade in jeans and hand bags.

ACTA is an audacious attempt at globalising some of the worst elements of the (UK) Digital Economy Act 2010 with additional bells on. Such has been the secrecy and unnecessary nature of ACTA that all EU citizens have been short changed both on their right to access relevant ACTA documents, but also the right to good administration.

What is wrong with ACTA?

(i) New enforcement duties and costs to ISPs and their customers

There are many problems with ACTA. In the context of the Internet, under Section 4 of the draft text ISPs may be forced to remove material, which they believe (rightly or wrongly) makes use of protected material, regardless of whether any actual infringement is occurring. In order to protect themselves from liability, ISPs may have to resort to technical measures such as bandwidth throttling, data monitoring and indeed “3-strikes”. The fact that those measures are not explicitly referred to in the ACTA text is irrelevant as ISPs may feel that they are the only tools they have to ensure compliance with the law. Thus, our freedom of expression and possibly our privacy in the online environment would be considerably curtailed.

(ii) Internationalising legal protections for DRM

ACTA also contains provisions on “anti-circumvention” of digital locks (DRM and 'technical protection mechanisms'). These are notorious for preventing users from exercising basic rights, such as making back up copies, format shifting for private use, and quotation for criticism and review. These provisions could globalise the worst aspects of EU and US law, without the appropriate balancing provisions in favour of users and the public interest at large.

(iii) Punitive procedures: guilty until proven otherwise?

There is also an attempt to replace judicial procedures with “administrative” procedures for the determination of, for example copyright infringement. This would avoid the scrutiny and requirements of appropriate evidence and proper contestation. European citizens deserve the right to be heard in court if they are accused of infringement. Fair due process must be guaranteed.

It is entirely inappropriate that the draft ACTA text criminalises infringement (ACTA Section 3). IP rights are typically regarded as a matter of civil law. Moreover, we find the sections on preventing “imminent infringement” to be unacceptable. Whether infringement has taken place is often a finely balanced consideration; there are also the many defences and exceptions to infringement and public interest issues to be considered. These ACTA provisions are oppressive and contrary to freedom of expression and contrary to the public good.

In addition we are concerned that provisions on damages that can be awarded if infringement is proven are also entirely disproportionate and not based on actual damage done to the rights holder.

(iv) Access to medicines and GMOs

Another issue of significant concern has been the threat to legitimate generic medicines. As patents are national, goods under patent in the country of manufacture and the destination country may be illicit in one or more country they pass through. ACTA could force those countries to seize these medicines in transit. Currently, it seems that patents have been dropped from the “Border Measures” chapter (Section 2 in the ACTA draft), however trademarks are still included and the EU has stopped some medicines under this provision.

The impact on GM seeds and goods covered by patents has also not been fully examined, but could be concerning.

Can we read the ACTA agreement?

The current draft of the treaty was not published officially, but was leaked in July. The EU Parliament forced the negotiators to open the treaty, but after this last round in Lucerne in June, MEPs were only allowed to view the text if they agreed not to share the contents with the citizens they represent. This led to Pirate MEP Christian Engström to refuse to examine the text.

What happens next?

The intention appears to be to complete the Treaty as quickly as possible, no doubt because opposition is mounting. Rounds of negotiations were taking place every 6 months, but two new rounds are scheduled, in Washington DC and Japan. The UK's official position seems to be that any final treaty will not create new changes to UK law - but academics disagree. Meanwhile, the EU Parliament seems likely to signal their opposition again, as they are a handful of signatures short of passing a Written Declaration (W12/2010).

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